Citation Nr: 1451802
Decision Date: 11/21/14 Archive Date: 11/26/14
DOCKET NO. 09-45 200 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for a bilateral hand disorder, to include arthritis, on a direct basis or as secondary to a service-connected lumbar spine disorder.
2. Entitlement to a rating in excess of 60 percent for degenerative joint disease (DJD) of the L4-L5 vertebrae with lumbar strain.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The Veteran served on active duty from April 1987 to May 1990.
These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).
The procedural history as to these claims was provided in detail in the Board's early February 2013 decision and will not be repeated here. In the Board's February 2013 decision, it restored the 60 percent rating for the service-connected low back disability. A subsequently dated February 2013 rating decision effectuated the Board's decision. The 60 percent rating was restored, effective February 28, 2006. In a July 2013 supplemental statement of the case (SSOC), the claims as listed on the title page were denied. In November 2013, the denials were confirmed. The appeal as to those issues continues.
During the course of the Veteran's appeal, in a July 2013 rating decision, service connection was granted for a total rating based on individual unemployability (TDIU). The Veteran has expressed no disagreement with the effective date of the grant, and the issue is no longer for appellate consideration.
In October 2012, a video conference hearing was held before a Veterans Law Judge (VLJ), and a transcript of the hearing testimony is in the claims file. In March 2014, the Veteran was notified that the VLJ who conducted the hearing was no longer employed by the Board. Although she was offered an additional hearing before the Board, the Veteran chose not to respond. Thus, the Board will assume that she does not want another hearing and render a decision on the available record.
As initial review of the file reflected some confusion as to the Veteran's wishes as to representation, the Board subsequently sought clarification in a September 2014 letter to the Veteran. Unfortunately, she did not respond. Therefore, in the light of the absence of clarification as to representation, the Board is considering the Veteran to be unrepresented.
The following determinations are based on review of the Veteran's claims file in addition to her Virtual VA "eFolder."
FINDINGS OF FACT
1. For the entire rating period, DJD of the lumbar spine has been manifested by incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, but not unfavorable ankylosis of the entire spine.
2. The Veteran is in receipt of the maximum available rating under Diagnostic Code (DC) 5243 based on incapacitating episodes due to the lumbar spine disability, and her bilateral lower extremity radiculopathy has been separately service connected and rated.
3. Bilateral hand disorders, to include arthritis and bilateral carpal tunnel syndrome, tendonitis, and trigger finger, were not demonstrated in service or for many years thereafter, and the most probative evidence of record does not show that any bilateral hand disorders are etiologically related to, or aggravated by, either a disease, injury, or event in service, or a service-connected disability.
CONCLUSIONS OF LAW
1. For the entire rating period, the criteria for an increased rating, in excess of 60 percent, for DJD of the L4-L5 vertebrae with lumbar strain, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Plate V, 4.71, DC 5243 (2014).
2. A bilateral hand disorder, to include arthritis, was not incurred in or aggravated by active military service, nor may arthritis be presumed to have been; a bilateral hand disorder, to include arthritis, is not proximately related to, or aggravated by, any service-connected disability. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.310 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and implemented at 38 C.F.R. § 3.159 (2014), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.
First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO dated in June 2007, March 2013, and April 2013, specifically notified her of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate her claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence she was expected to provide.
The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. 3.159(b) (2014) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the June 2007 letter mentioned above.
Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013). The information and evidence associated with the claims file consist of her service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements and testimony from the Veteran. Also of record are medical records as provided by the Social Security Administration (SSA). There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran.
The appellant was afforded the opportunity to testify before a VLJ in October 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2014) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ elicited testimony necessary to determine the nature of the appellant's claim regarding entitlement to a rating in excess of 60 percent for a lumbar spine disorder. No specific testimony as to the claim for service connection for bilateral hand disorders was provided at the 2012 hearing. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.
Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2014) nor has she identified any prejudice in the conduct of the Board hearing. Indeed, the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2014).
Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service Connection - In General
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2014).
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014).
In addition, certain chronic diseases (e.g., DJD or arthritis) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2014).
The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2014), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2014).
This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2014).
The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999).
Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2014).
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2014); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski,
1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.
A Bilateral Hand Disorder, to Include Arthritis, on a Direct Basis or as Secondary to a Service-Connected Lumbar Spine Disorder.
Background
The STRs are negative for report of, treatment for, or diagnoses of bilateral hand conditions. Post service records include VA examination report with X-rays dated in October 2007. At that time, the diagnoses included left thumb carpometacarpal degenerative arthritis. Examination of the right hand was normal. It was the VA examiner's opinion that the left thumb arthritis was not the result of or caused by the service-connected back disorder.
VA X-ray of the left hand in January 2010 showed increasing osteopenia and moderate degenerative changes. VA virtual records reflect that he claimant underwent left thumb surgery in late 2010.
In a February 2013 Board decision, it was concluded that the October 2007 examination report was inadequate to address whether the Veteran had a bilateral hand disorder as secondary to the back disorder, particularly as to the issue of aggravation. The claim for service connection for a bilateral hand condition was remanded for additional VA examination.
Records added to the file include SSA treatment records which reflect treatment for various conditions, to include osteoarthritis of the "hand." The Veteran was awarded SSA benefits in a January 2009 document. The primary diagnosis was discogenic and degenerative disorders of the back. A secondary diagnosis was hand pain. The disability began in February 2008.
Additional VA examination was conducted in May 2013. The Veteran gave a history of bilateral hand pain especially at the base of the thumbs into the palm/volar wrist with fingers that would lock up. The right hand was with pain without the fingers locking, and she was holding on surgery as to that hand at this time. Wrist splints were working as to her complaints when working on the computer and when trying to write, and using the walker. She said that she had surgery in 2010 to resect the bone at the base of the left thumb. Now, she experienced improved locking and she did not drop objects as much. She still had some tingling, pain, and numbness in both hands. She had difficulty with picking up small items such as coins off of the counter.
Following review of the claims file and examination of the Veteran, to include electromyography (EMG) study, the examiner concluded that hand conditions were less likely than not incurred in or caused by an inservice injury, event or illness. For rationale, she noted that the Veteran served as a postal worker from 1987 to 1990. She was right hand dominant and had worked as a customer service representative. Most of her days were spent on the computer keyboard, but she had not worked in recent years due to her multiple conditions. The examiner noted that she found no evidence during the Veteran's time in service that would substantiate that any of her hand conditions were related to her time in service.
The examiner further noted that hand diagnoses included bilateral carpal tunnel syndrome and left ulnar neuropathy that were not related to the Veteran's back or neck. Additional hand conditions included tendonitis, arthritis, and trigger finger, which were related directly to using of the hands. The examiner opined that these conditions had no relationship directly to the back and were not permanently aggravated by the back.
Analysis
With regard to establishing service connection on a presumptive basis under 38 U.S.C.A. § 1112 (West 2002 & Supp. 2014), the Board notes that there is no competent evidence of record indicating that the Veteran had a diagnosis of arthritis of either hand to a compensable degree within one year of discharge from active duty. In this regard, there is no radiographic or medical evidence of arthritis within one year of the Veteran's separation from active duty. Therefore, service connection for arthritis of the hands cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112 (West 2002 & Supp. 2013).
With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2014).
Upon review of the claims file, the Board finds that the May 2013 VA examiner's opinions are the most probative medical opinions of record on the matter of service connection for bilateral hand disabilities on a direct basis or as secondary to a service-connected low back disorder. As noted earlier, when the evidence was deemed to be inadequate, additional medical examination was requested. The VA examiner in 2013 reviewed the claims file, offered definitive opinions with regard to this claim, and provided detailed rationales for her opinions. Therefore, the Board finds her report to provide probative information as to the medical questions raised in this case. In her opinion, it is less likely than not (less than 50 percent probability) that the Veteran's bilateral hand disorders, to include carpal tunnel syndrome, left ulnar neuropathy, tendonitis, arthritis, and trigger finger, are directly related to her active military service and that it is less likely than not that the Veteran's bilateral hand disorders are etiologically related, or secondary, to the Veteran's service-connected lumbar spine disorder. Thus, the Board finds that service connection cannot be granted on a direct or secondary basis.
The Board acknowledges the Veteran's contentions that she has current bilateral hand disorders, to include arthritis, as a result of her active duty or her service-connected lumbar spine disorder. However, the medical evidence of record does not support her contentions. While she can attest to factual matters of which she has first-hand knowledge, see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), as a lay person, she has not been shown to be capable of making medical conclusions. While she is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The etiology questions before the Board require medical opinions. Therefore, while the Board has considered her lay assertions, the Board ultimately places more probative value on the May 2013 VA examiner's opinions with regard to the matter at hand.
To the extent that the Veteran is contending that a bilateral hand disorder has existed since service, the Board finds that such statements are not corroborated by the record. To reiterate, no hand disorders were noted until many years after service. And, medical opinion is of record that current hand disorders are not of service origin and are not secondary to any service-connected condition.
In light of the lack of clinical findings related to a bilateral hand condition during service or until many years after discharge, the Board concludes that any current assertions of a continuity of symptoms dating to service are simply not credible. The Board notes the multi-year gap between discharge from active duty service and the Veteran's initial reported symptoms related to the hands. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving claim). All of these factors weigh against a finding of continuity of symptomatology since service.
In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hand disorders, and the benefit-of-the-doubt rule is not for application.
Increased Ratings - In General
Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. Part 4 (2014).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2014).
It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2014).
When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.
38 C.F.R. § 4.20 (2014).
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See, e.g., Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40
(2014). The RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).
A Rating in Excess of 60 Percent for DJD of the L4-L5
Vertebrae with Lumbar Strain.
Background, Additional Laws and Regulations, and Analysis
The Veteran contends in various lay statements and in his hearing testimony that a rating in excess of 60 percent is warranted for her service-connected lumbar spine disability.
After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, DJD of L4-L5 vertebrae with lumbar strain, has been manifested by incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, but not unfavorable ankylosis of the entire spine. Based on the evidence of record, the Board finds that it is not ascertainable that an increase in disability occurred at any time for the period in question.
For the entire rating period, the Board finds that a preponderance of the lay and medical evidence is against an increased rating in excess of 60 percent for the lumbar spine disorder. The Veteran is currently in receipt of a 60 percent rating under DC 5243 based on the presence of incapacitating episodes having a duration of at least 6 weeks during a 12 month period. A 60 percent evaluation is the maximum evaluation available under that DC; therefore, the Board finds that a higher evaluation is not available pursuant to DC 5243.
A higher 100 percent evaluation is assignable under DC 5242 for unfavorable ankylosis of the entire spine (cervical and thoracolumbar). Note (5) to 38 C.F.R. § 4.71a (2014) defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or, in the context of a 100 percent rating, where the entire spine (cervical and thoracolumbar) is fixed in flexion or extension, where ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.
The evidence of record includes many VA examinations of the lumbar spine, to include evaluations in July 2003, April 2006, July 2007, October 2007, July 2008, November 2010, and May 2013. At the time of the reports, significant impairment as a result of the lumbar spine was indicated. For example, significant decrease in range of motion (ROM) of the thoracolumbar spine was indicated in October 2007. At that time, there was 0-20 degrees of extension, 0-33 degrees rotation to the left, 0-20 degrees rotation to the right, 0-73 degrees forward flexion with 0-28 degrees of lateral flexion, bilaterally. (Normal ranges of motion associated with the lumbar spine are flexion forward to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. 38 C.F.R. § 4.71a, Note (2) (2014). ROM in November 2010 was flexion from 0-70 degrees, extension from 0-10 degrees, bilateral flexion 0-30 degrees, and bilateral rotation from 0-25.
As noted by the VA examiner in May 2013, the Veteran had 4 to 6 weeks of incapacitating episodes in a one year period. Neither that physician nor any of the VA physicians of record identified the presence of unfavorable ankylosis of the entire spine. Thus, such was not indicated at any time during the appeal period. Clearly, while some limitation of motion is indicated in the reports, the record shows that the Veteran had active motion in the lumbar spine throughout the entire rating period, and as already noted, the RO restored the Veteran' initially assigned 60 percent rating for a lumbar spine disorder, effective February 28, 2006, upon rating decision in February 2013. The question before the Board is whether a rating in excess of 60 percent is warranted for any period from that effective date.
At no time in the record, do the physicians of record identify the presence of unfavorable ankylosis of the spine. The record shows that the Veteran had active motion in the lumbar spine throughout the entire rating period, and such findings are by definition, not ankylosis, favorable or unfavorable. Even with consideration of the Veteran's functional loss due to pain and other factors, the Board finds that the Veteran did not have unfavorable ankylosis of the entire spine. See DeLuca, 8 Vet. App. at 206. There simply is no evidence showing that the entire spine is fixed in flexion or extension, nor has the Veteran asserted in lay statements or testimony and testimony, that she has fixation of the entire spine. She is also not service connected for any cervical spine disability.
While the Veteran has some limitations to range of motion in the thoracolumbar spine, the entire spine is not shown to be fixed in flexion or extension, and she is not shown to exhibit other factors associated with unfavorable ankylosis of the spine as described in Note (5) to 38 C.F.R. § 4.71a (2014). Even with consideration of pain and other functional limitations, the Board finds that for the entire rating period, the Veteran's lumbar spine disability does not more nearly approximate the criteria for a higher 100 percent disability rating under DC 5242. See 38 C.F.R. § 4.71a (2014). The Board finds, therefore, that for the entire rating period, a 100 percent rating under DC 5242 is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca, supra.
Extraschedular Consideration
The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (2014) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including DCs 5242 and 5243, specifically provide for disability ratings based on incapacitating episodes and limitation of motion in the spine, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59, 4.114, 4.124a (2014); see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's lumbar spine disability has been manifested by incapacitating episodes having a duration of approximately 6 weeks during a 12 month period, but not ankylosis of the spine. These symptoms and manifestations are contemplated by the schedular rating criteria.
Additionally, the Board has considered the Veteran's functional limitations noted during VA examinations. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2014). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2014).
In this case, the functional limitations imposed by the Veteran's disability, specifically, an inability to maintain work due to back pain and incapacitating episodes occurring several times a year, are specifically contemplated by the criteria discussed above, including the effect of the Veteran's pain on her occupation and daily life. Inasmuch as evidence indicates that the Veteran is unable to work due to a service-connected lumbar spine disability, the Board finds such occupational limitations are adequately addressed by the assignment of a TDIU. In the absence of exceptional factors associated with the Veteran's lumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2014) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to service connection for a bilateral hand disorder, to include arthritis, is denied.
Entitlement to a rating in excess of 60 percent for DJD of the L4-L5 vertebrae with lumbar strain is denied.
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs